Over
the next year or three, Hoppe's theory was intensely debated and commented
on by several libertarians. Several replies and reviews, for example,
were published in Liberty and elsewhere, by libertarians such
as Murray Rothbard, David Gordon, Tibor Machan, David Friedman, Loren
Lomasky, David Osterfeld, Sheldon Richman, Leland Yeager, David Ramsay
Steele, Douglas Rasmussen, David Conway, and others. Hoppe responded
to many of these pieces at length; these responses are reprinted in
"Four
Critical Replies," Appendix to The
Economics and Ethics of Private Property.

Several
of the replies to Hoppe were unusually nasty and unfair. Some were shocked
anyone would argue for "untrammeled anarchism" and others
were turned off by the idea that libertarian rights could be rigorously
proved. Others badly misconstrued Hoppe's argument. Still others, like
Rothbard, recognized that Hoppe's theory was a revolutionary advance
in libertarian theory, as have a growing number of adherents over the
years. (One of the most recent papers addressing Hoppe's view of rights
is the fascinating new working paper Hopp(e)ing
Onto New Ground: A Rothbardian Proposal for Thomistic Natural Law as
the Basis for Hans-Hermann Hoppe's Praxeological Defense of Private
Property, by Jude Chua Soo Meng, which attempts to elaborate and
extend Hoppe's argumentation ethic and its relation to Rothbardian Austrian
economics, praxeology, and libertarian theory.)

The
central question here is: does Hoppe's theory establish that there are
libertarian rights?

Scarce
resources are those things over which there can be conflict; two or
more individuals may want to use or control a given scarce resource
at the same time, but only one of them can, because use by one excludes
use by the other. Thus, as Hoppe explains, a theory of interpersonal
ethics must be a theory of property rights, "a theory of the assignment
of rights of exclusive control over scarce means" (TSC,
p. 235 n.9; also p. 8). The purpose of rights is to specify which individual
has the right to control a given scarce resource, so that conflicts
may be avoided. The person who has the right to control a given scarce
resource – its owner – is the person who is justified in using
the resource, in excluding others, and in enforcing this exclusion against
non-owners who would act in disregard of the owner's property rights.

Everyone
has at least an implicit view of rights. An aggressor – or at least
one who would try to justify his aggression – maintains that he is entitled
to a given scarce resource "because" he is strong enough to
take it. Others, such as socialists, believe that the state is entitled
to the means of production "because" – well, because they
are the state, "because" capitalists "exploit" workers,
and so on. Mainstream liberal-democratic types believe that, for example,
the poor are entitled to property formerly owned by the not-poor, "because"
the property is transferred from the latter to the former by means of
a democratic process, which is "legitimate." Everyone assigns
each disputed scarce resource to some
owner –
whether to a thief, the state, or a relatively-poor "needy"
person – for some reason.

The libertarian
view of rights, as distinct from all others, says that we answer the
question of who owns a scarce resource simply by asking who was its
first user. In the case of bodies, the person himself is the
owner of his body, as he was its first user. In the case of external
scarce resources, the owner is the original appropriator (or someone
he transferred it to). Thus, under libertarianism, an individual has
(a) a right to the exclusive control of the scarce resource of his body,
sometimes called "self-ownership"; and (b) a right to the
exclusive control of other, previously-unowned scarce resources that
are originally appropriated by the individual or by his ancestor-in-title.

So the
question is, does Hoppe's theory establish that the libertarian view
of rights, as opposed to competing views, is the correct one?

Hoppe's
Theory: Let's Try Again

I do not
intend here to restate Hoppe's entire argument, as I believe it has
been adequately explicated and defended already by Hoppe, in the literature
referenced above. And he has already replied to numerous criticisms,
some of them similiar to MC's. Instead, I will try to show, as simply
as possible, why Hoppe succeeds. I'll then address, in view of this,
a few of MC's concrete critiques, but it should be clear by this point
why I think their criticism is off base.

Hoppe
starts by noting that if any proposed theory of rights is going to be
justified, it has to be justified in the course of an argument (discourse).
I fail to see how MC can disagree with this without falling into contradiction.
It follows that if any norms, ethics, facts, or rules of discourse are
necessarily presupposed by participants in argumentation simply
by virtue of arguing, then no theory that contradicts these presupposed
facts or norms could ever be justified. By contrast, any proposed theory
that is consistent with, indeed implied by, these presuppositions, would
have to be seen as irrefutably justified. This type of reasoning is
called the "apriori of communication and argumentation," and
was pioneered, to my knowledge, by German philosophers Jürgen Habermas
(Hoppe's PhD advisor) and Karl-Otto Apel (but was applied by them to
reach non-libertarian results).

Again,
I fail to see how MC can disagree with any of this, in general. Rather,
the disagreement is over what norms are actually implicit in the activity
of argumention – that is, over what participants in discourse must
presuppose to be true in order to participate in argument. Whatever
these presuppositions are, they rule out of court any proposed norms
inconsistent with them. And, any such normative presuppositions, or
norms deduced from these presuppositions, would have to be considered
to be ultimately and irrefutably justified, as their validity could
never be coherently denied.

Universalizability

So let's
see what Hoppe contends. First, any norm proposed in argumentation is
presumed to be universalizable. Writes Hoppe:

"Quite commonly it has been observed that argumentation
implies that a proposition claims universal acceptability, or,
should it be a norm proposal, that it is 'universalizable.' Applied
to norm proposals, this is the idea, as formulated in the Golden Rule
of ethics or in the Kantian Categorical Imperative, that only those
norms can be justified that can be formulated as general principles
which are valid for everyone without exception."(TSC,
p. 131).

In other
words, any proposed norm – that is, an attempted justification for a
given action – is not justified if it is not universalizable. This rule
is presupposed by the very attempt to argumentatively justify something,
because "argumentation implies that everyone who can understand
an argument must in principle be able to be convinced of it simply
because of its argumentative force." Because the universalizability
priniciple is an inherent feature of argumentation in general, "the
universalization principle of ethics can now be understood and explained
as grounded in the wider 'apriori of communication and argumentation.'"
(TSC,
p. 131) I.e., no one can deny that only universalizable norms can be
justified.

So,
we have our first presupposition: that only universalizable ethics can
be possible candidates for being justified. By the same token, so-called
"particularizable" norms are not justifiable. However,

"the universalization principle only provides a purely
formal criterion for morality. To be sure, checked against this
criterion all proposals for valid norms which would specify different
rules for different classes of people could be shown to have no legitimate
claim of being universally acceptable as fair norms, unless the distinction
between different classes of people were such that it implied no discrimination,
but could instead be accepted as founded in the nature of things
again by everyone. But while some norms might not pass the test of universalization,
if enough attention were paid to their formulation, the most ridiculous
norms, and what is of course even more relevant, even openly incompatible
norms could easily and equally well pass it. For example, 'everybody
must get drunk on Sundays or be fined' or 'anyone who drinks alcohol
will be punished' are both rules that do not allow discrimination among
groups of people and thus could both claim to satisfy the condition
of universalization." (TSC,
p. 131-132; emphasis added)

But even
though universalizability is merely a formal requirement, it does eliminate
many proposed norms, such as those underlying most versions of socialism
which amount to "I can hit you but you cannot hit me" particularizable
rules.

"[T]he property theory implicit in socialism does not
normally pass even the first decisive test (the necessary if not sufficient
condition) required of rules of human conduct which claim to be morally
justified or justifiable. This test, as formulated in the so-called
golden rule or, similarly, in the Kantian categorical imperative, requires
that in order to be just, a rule must be a general one applicable
to every single person in the same way. The rule cannot specify different
rights or obligations for different categories of people (one for the
red-headed, and one for others, or one for women and a different one
for men), as such a 'particularistic' rule, naturally, could never,
not even in principle, be accepted as a fair rule by everyone. Particularistic
rules, however, of the type 'I can hit you, but you are not allowed
to hit me,' are at the very base of all practiced forms of socialism."
(TSC,
p. 5.)

Thus
universalizability acts as a first-level "filter" that weeds
out all particularistic norms. This reduces the universe of possibly
justified normative claims but does not finish the job since many incompatible
and unethical norms could be reworded in universalizable ways.

It
is for this reason that Hoppe next examines other, more substantive,
presuppositions inherent in argument itself. These are then used in
a second filtering process to reject additional proposed norms, those
that are universalizable but incompatible with the other presuppositions
of discourse. And, because some of these presuppositions turn out to
be presupposed norms, Hoppe then shows that the libertarian conception
of rights can be deduced from these presupposed norms and facts.

Substantive
Facts and Norms Presupposed in Argumentation

The universalization
principle filters out many possible norms, but many possible, mutually
incompatible, and nonlibertarian candidates remain ("anyone who
drinks alcohol will be punished").

"However, there are other positive norms implied in argumentation
aside from the universalization principle. In order to recognize them,
it is only necessary to call three interrelated facts to attention.
First, that argumentation is not only a cognitive but also a practical
affair. Second, that argumentation, as a form of action, implies
the use of the scarce resource of one's body. And third, that
argumentation is a conflict-free way of interacting." (TSC,
p. 132; emphasis added)

Participants
in discourse cannot deny the existence of scarcity (discourse is a form
of action, after all, and action implies scarce resources, in one's
body and in external objects) nor the possibility of conflict over these
scarce resources. They also value the ability to participate in argument
(they are engaging in it, after all) and thus its practical preconditions,
namely the ability to actually use scarce resources in order to survive
(for argumentation is not possible without survival). And because argumentation/discourse
is cooperative, civilized, peaceful activity, and because "justifying
means justifying without having to rely on coercion" (TSC,
p. 133), participants in discourse necessarily value being able to use
scarce resources in a conflict-free way. One adopting a civilized, peaceful
stance and trying to justify a norm cannot coherently advocate non-peaceful
norms. In fact, the very attempt to justify a resource allocation norm
is an attempt to settle conflicts with regard to the use of that
resource. Thus, a participant in discourse could never justify the proposition
that there is no value to being able to use resources, or that conflict
should not be avoided, or that cooperation and peacefulness are bad
things. Valuing the avoidance of conflicts also presupposes the value
of attempting to find rules that make conflict avoidance possible. I.e.,
property rules.

Accordingly,
participants in discourse, in particular those seeking to justify proposed
norms, implicitly recognize the value and legitimacy of assigning specified
property owners to specified scarce resources – for reasons that are
universalizable and that make conflict-avoidance possible. However,
property rights make conflict avoidance possible by establishing perceivable
boundaries to property indicating the property's borders and who the
owner is, and by basing the assignment on universalizable rules that
could be accepted as fair by all potential arguers. For this reason,
the assignment of property rights has to be based on some objective
link between the claimant and a particular resource.

What all
this means is that anyone ever attempting to (argumentatively) justify
any norm is already presupposing a host of norms and argumentative rules.
The substantive presupposed norms rule out many proposed norms, even
if they are universalizable. For example, a rule such as "no one
should ever be able to use any scarce resource" could never be
justified. It is incompatible with the speaker's evident value for the
ability to use scarce resources, because he has to use (and be able
to use) the scarce resource of his body in order to engage in any activity,
including argumentation. And he, or someone, had to be able to use other
scarce resources such as food, shelter, etc., so that the arguers are
alive and able to argue (remember, discourse is a practical affair,
and requires the speakers to be alive, to have control of their bodies
and their standing room, etc.).

In addition,
a rule specifying that all resources, or even some resources, should
have no owner at all, simply does not allocate ownership in the scarce
resources at issue, i.e. it does not fulfill its function of conflict-avoidance.
Unless property rights are allocated to someone, conflict over each
scarce resource is possible; that is the nature of scarcity. (As a practical
matter, most such rules also imply that, if a given resource should
not be "owned," then some person or agency is authorized to
prevent others from using the thing. In which case the rule is
in reality assigning ownership to the agency with control, and would
need to be justified. For example, the public forests are said to be
"unowned" but the federal government prevents homesteaders
from moving in. Clearly here the federal government is asserting ownership.
The necessity of justifying this cannot be avoided by the fiction that
the property is not owned.)

There
is no way any norm can be justified that does not seek to assign ownership
of every scarce resource to particular owners, based on an objective
link between the owner and the owned resource. No rule could ever be
justified if it refrains from deciding who owns a particular resource,
or if it specifies that no one owns a resource. And any justification
offered has to be universalizable. The reasons for all these requirements
should be clear by now. Universalizability has been discussed. Particular
owners must be assigned to each and every scarce resource – this is
what any theory of property – any ethic – has to do. There must be an
objective link between the owner and the resource, so that conflicts
can be avoided, and also to comply with universalizability. "Every"
scarce resource must be owned by someone, for conflict-avoidance and
other reasons given above.

To this
point the case is fairly general, and only establishes the framework
for examining various competing norms. The libertarian insistence on
objective links between resources and owners, and its particular view
of what constitutes such objective links, is what completes the case.

Objective
Links: First Use, Verbal Claims, and the Prior-Later Distinction

So now
we come to libertarianism. It turns out that libertarianism is the only
theory of rights that satisfies the presuppositions of discourse, because
only it advocates assigning ownership by means of objective links between
the owner and the property. This link, of course, is first use,
or original appropriation. Only the norm assigning ownership in a thing
to its first user, or his transferee in title, could fulfill this requirement,
or the other presuppositions of argumentation.

There
is clearly an objective link between the person who first begins to
use something, and emborders it, and all others in the world. Everyone
can see this. No goods are ever subject to conflict unless they are
first acquired by someone. The first user and possessor of a good is
either its owner or he is not. If he is not, then who is? The person
who takes it from him by force? If forcefully taking possession from
a prior owner entitles the new possessor to the thing, then there
is no such thing as ownership, but only mere possession. But such
a rule – that a later user may acquire something by taking it from the
previous owner – does not avoid conflicts, it rather authorizes them.
It is nothing more than mights-makes-right writ large. This is not what
peaceful, cooperative, conflict-free argumentative justification is
about.

What about
the person who verbally declares that he owns the good that another
has appropriated? Again, this rule is not justifiable because it does
not avoid conflicts – because everyone in the world can simultaneously
decree that they own any thing. With multiple claimants for a piece
of property, each having an "equally good" verbal decree,
there is no way to avoid conflict by allocating ownership to a particular
person. No way, other than an objective link, that is, which again shows
why there must be an objective link between the claimant and the resource.

As Hoppe
states:

"Hence, the right to acquire such goods must be assumed
to exist. Now, if this is so, and if one does not have the right to
acquire such rights of exclusive control over unused, nature-given things
through one's own work, i.e., by doing something with things with which
no one else had ever done anything before, and if other people had the
right to disregard one's ownership claim with respect to such things
which they had not worked on or put to some particular use before, then
this would only be possible if one could acquire property titles not
through labor, i.e., by establishing some objective, intersubjectively
controllable link between a particular person and a particular scarce
resource, but simply by verbal declaration; by decree. [] The separation
is based on the observation that some particular scarce resource had
in fact – for everyone to see and verify, as objective indicators for
this would exist – been made an expression or materialization of one's
own will, or, as the case may be, of someone else's will." (TSC,
pp. 135-136; see also pp. 142-144)

As Hoppe
notes, assigning ownership based on verbal decree would be incompatible
with the "nonaggression principle regarding bodies," which
is presupposed due to the cooperative, peaceful, conflict-free nature
of argumentative justification. Moreover, it would not addess the problem
of conflict avoidance, as explained above.

Thus,
Hoppe is correct, when he writes:

"Hence, one is forced to conclude that the socialist
ethic is a complete failure. In all of its practical versions, it is
no better than a rule such as 'I can hit you, but you cannot hit me,'
which even fails to pass the universalization test. And if it did adopt
universalizable rules, which would basically amount to saying 'everybody
can hit everybody else,' such rulings could not conceivably be said
to be universally acceptable on account of their very material specification.
Simply to say and argue so must presuppose a person's property right
over his own body. Thus, only the first-come-first-own ethic of capitalism
can be defended effectively as it is implied in argumentation. And no
other ethic could be so justified, as justifying something in the course
of argumentation implies presupposing the validity of precisely this
ethic of the natural theory of property." (144)

Murphy's
& Callahan's Critique

I am really
at a loss as to where MC would part company with this theory. Do they
deny, for example, that there is scarcity in the world, or that conflicts
are possible? I doubt it. Do they deny that universalizability is not
a requirement for justified norms? I doubt it, unless they are also
ethical skeptics, in which case I wonder why they consider themselves
libertarians. Do they deny that rights have to be justified, and that
justification has to occur during argument? Such a denial would be a
neat trick, as it would itself be an argument. Do they maintain that
participants in discourse do not presuppose any truths? – or
do they just say that none of these are normative? Or do they
think that argumentation is not a conflict-free way of interacting?
– in which case they would seem to think bashing someone over the head
or stealing their wallet is also a form of peaceful, cooperative discourse.

Or, do
they think it is coherent for a participant in the peaceful, cooperative
activity of discourse, while searching with the other for a universalizable,
conflict-avoiding property allocation rule, to advocate socialism, or
any other non-libertarian approach? If they are libertarians surely
there must be some advantage to libertarian rights, that would
factor in to such a generalized argumentative justification context.
Or, would MC seriously maintain that a norm could be argumentatively
justified, if the norm, if followed, would render human life, and thus
argumenative justification itself, impossible?

MC
do not do attempt to debunk argumentation ethics in general, or, alternatively,
to show just what ethics are implied in argumentation (and why
these are not the ones that Hoppe proposes). Do they believe any
norms are implied in argumentation? If not, they would seem to reject
the entire edifice of work in this regard, including work by Jurgen
Habermas, Karl-Otto Apel, Frank Van Dun, G.B. Madison, Alan Gewirth,
Roger Pilon, Tibor Machan, and others discussed in my survey article
"New
Rationalist Directions in Libertarian Rights Theory."

On
the other hand, if they accept that argumentation implies some
norms, which are they? Do these norms support libertarianism? Socialism?
Or are they only non-rights-related interpersonal norms, like "be
nice" or "don't lie"? Are these argumentatively-presupposed
norms at least consistent with libertarianism? MC write: "Whenever
people engage in argumentation, they implicitly agree to a set of norms.
For example, each participant implicitly agrees to try to persuade the
other(s) through peaceful methods." I am not clear whether they
are only paraphrasing or whether they accept this is true. If they do
accept it as true, are there no implications to be drawn from
this? Does it place no constraints whatsoever on the legitimacy of norms
propositionally advanced in the course of (peaceful!) argument?

It
seems to me that if MC accept any form of argumentation ethics as valid
– that is, if there are some norms implied in discourse – then, as libertarians
who believe libertarian norms are (somehow) justified, they would
have to believe that the argumentative norms are at least compatible
with, if not the grounding for, libertarian rights.

What
about universalizability? I am not sure if MC really reject the universalizability
requirement – but if they do, I fail to see how they can themselves
adhere to any notion of rights; rejecting universalizability means that
any norm whatsoever can be proposed, by simply making up a particularistic
reason for it. Without the universalizability principle, literally "anything
goes," which of course leads to ethical relativism and/or skepticism.
I will assume that MC are not ethical relativists or skeptics and thus
do not reject universalizability. But I am not sure they fully appreciate
this principle.

Consider
this comment by MC: "To simply declare that ownership rights must
be 'universalizable' is no help, either; after all, communists could
cite the same principle to 'prove' that everyone should have equal shares
to all property." MC write here as if they are totally unaware
that Hoppe has explicitly stated that "the universalization principle
only provides a purely formal criterion for morality" (TSC,
p. 131). Of course, even if socialism's principles were reformulated
in a completetly universalizable way, it will still be inconsistent
with other norms presupposed in argumentation, as noted above.

And regarding
universalizability, MC also state:

"Finally,
we wish to note that, even if the above problems are overlooked, it's
still the case that Hoppe has only proven self-ownership for the individuals
in the debate. This is because, even on Hoppe's own grounds, someone
denying the libertarian ethic would only be engaging in contradiction
if he tried to justify his preferred doctrine to its 'victims.'

"For example,
so long as Aristotle only argued with other Greeks about the inferiority
of barbarians and their natural status as slaves, then he would not
be engaging in a performative contradiction. He could quite consistently
grant self-ownership to his Greek debating opponent, while denying
it to those whom he deems naturally inferior. [] Aristotle need only
contend [that] barbarians [] are not as rational as Greeks."

Do MC
think that merely "deeming" or "contending" something
to be so is automatically compatible with
universalizability? I believe they are simply misapplying the universalizability
principle here (or, rather, failing to apply it). For Aristotle to grant
rights to himself and Greeks, but not to other individuals, would simply
be particularistic. He would have to show that there is some reason,
objectively grounded in the nature of things, that justifies rights
in Greeks but not in other people identical to Greeks in all respects
except for their Greekness. Again, either the universalizability
requirement is taken seriously, or it is not. If not, the door to ethical
skepticism is opened wide.

MC introduce
supposed "counterexamples" of God and slavery. Take the slavery
case. They recognize that "Hoppe and Rothbardian libertarians in
general do not believe in universal self-ownership. In particular,
they believe that criminals may be rightfully enslaved to pay
off their debts to victims (or their heirs)." Well, of course!
Hoppe is a libertarian. To advocate self-ownership means that a person
has the right to control his body, as a default or prima facie matter.
Buf if someone commits aggression, of course the victim now is a partial
"owner" of the aggressor's body, because he has a right to
use force against it. So consider a victim who now "owns"
an aggressor who, say, murdered the victim's wife. Of course, the owner
could engage in debate with the slave, but only by granting the slave
the right to use his body for purposes of argument. But how does this
change the fact that no one can argumentively deny the normative presuppositions
that imply libertarianism? Let's assume the owner is libertarian. He
believes in the need for property rules and conflict-avoidance. He believes
any norms have to be universalizable. If he advocated socialism, his
argument would be incompatible with necessary argumentative presuppositions
of peace, prosperity, and conflict-avoiding prosperity – because socialist
rules are either not universalizable or are not based on objective links
between owner and resource. But his claim that he has a right to wield
force against the slave is perfectly justified. It is universalizable,
because the different treatment of the slave-aggressor and the master-victim
is not arbitrary but is grounded in the objective fact of the act of
aggression. It is compatible with objectively assigning property rights,
because it is a way of enforcing objectively assigned property
rights that are violated.

As
for God – you can't just posit that God owns everyone and "therefore"
we are not self-owners. Moroever, even if God does own us, it could
be that we are still self-owners vis-a-vis each other. In any event,
this in no way refutes the conclusion that only the libertarian norms
can be argumentatively justified in discourse.

MC try
to make much of their notion that propositions advanced "during"
argument are not subject to the presuppositions of argument, if the
rule is designed to be applied in a non-argumentative context. But propositions
can only be justified during argumentation. A participant in
discourse cannot deny that conflict-avoidance is good. When he seeks
to justify something, it is always some action he seeks to justify.
The justification takes place at one time; the action to be justified,
at another. So what? Are MC saying that no action can ever be
justified, other than argument itself? Consider an act of theft, or
property acquisition, or rape: all non-argumentative actions. Obviously,
these actions are not justifying-actions, because they are not arguments.
The only time they could possibly be justified is at another time, during
argument. In any event, this critique seems to miss the point. If two
people seek to agree upon a fair, universalizable rule for assigning
property rights in scarce resources to individuals in a way that would
allow conflict to be avoided and the resources to be used – of course
the rule they are considering will be applicable to future property
disputes. I am baffled at how they could think otherwise.